17 January 2020 - Limitation Periods Have Been Abolished in Child Abuse Cases but Delay is Still an Issue

Even though every Australian state has now passed legislation abolishing limitation periods in child abuse cases, judges still generally retain a common law discretion to “stay” proceedings where delay means that a fair trial can’t be had.

There are now three cases where a judge has granted a permanent stay on proceedings (meaning that the claims can’t proceed) in historical child abuse claims because of delay:

• John Connellan v Martha Murphy [2017] VSCA 116
• Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
• The Council of Trinity Grammar School v Anderson [2019] NSWCA (9 December 2019)

In two of these cases (Connellan and Moubarak), the claim was against an individual where it is more likely that evidence will have been lost, no records will exist, witnesses unable to be located or have died and/or memories will have faded. Of more concern for victims of institutional abuse is the decision in the Anderson case which involved a school.

Facts:

• - Anderson (student) alleged sexual assault by Futcher (teacher) between 1974 and 1976 – some on school grounds, most on camps or other locations away from school grounds.
• - Anderson disclosed abuse to wife and counsellor as early as 1994.
• - Anderson received legal advice in 1997 – Trinity were notified of the alleged abuse in 1997 by the police, not by a representative of Anderson or Anderson himself.
• - At the time of the notification, any claim was barred by statute, in the judge’s opinion, not warranting investigation. Trinity’s approach was allowing the police to investigate, this was supported by the judge as practical.
• - 2004, Hanigan’s Lawyers made a claim on behalf of Anderson. At this time, a key witness (reverend Sandars) and source of information was still alive and available to be interviewed. Given the witnesses age and the time that had lapsed since the time of the alleged assaults, the judge stated that it would normally have ben appropriate to promptly investigate the matter. However, Trinity denied liability (of the claim) and sought clarification from Hannagan’s on what basis the claim was not statute barred by the limitation act.
• - Hannigan’s, Anderson’s representatives, failed to respond to this letter – The judge noted that an application for extension could have been made at this point in time. No further action was taken by Anderson until 2014.
• - Between 2004 and 2014, the key witness had passed away without any form of statement being made or sought.
• - The key witness is said to be central in demonstrating both direct liability and vicarious liability.

Rotham J found as follows:

• Absent the key witness, Trinity was not in a position to “deal meaningfully” with the alleged breach of non-delegable duty in respect of the first, second and third sets of allegations of sexual assault; The absence of the Reverend Sandars (key witness) and any records from the time to show the existence or non-existence of systems or procedures to protect students from abuse and the lack of assistance obtained from the statements and affidavits of teachers means that Trinity is unable to deal with whether the first, second and third sets of allegations were caused by a breach of its non-delegable duty.”
• Absent the Reverend Sandars, Trinity is “unable to provide a meaningful response to the claim” of vicarious liability in respect of the first, second and third sets of allegations of sexual assault. Trinity is not in a position to ascertain whether it acquiesced in or authorised Futcher (teacher/abuser) to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van
• Due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camps, Trinity is unable “to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts”

Rothman J found that Trinity was not responsible for the position it found itself in with respect to a lack of statements, witnesses and documentation/records and considered that Trinity had acted reasonably in not investigating the claim of Anderson in 2004 as it was statute barred.

On the other hand in Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489, which was a case also involving an individual perpetrator who had died, the Judge refused an application to stay proceedings because of delay. The judgement in this matter has been appealed and we are awaiting the decision which is reserved.

The take home for victims of historical abuse is that delay continues to be a factor in historical abuse claims and that action should be taken by claimants as soon as possible notwithstanding the “abolition” of limitation periods in child abuse claims.